Defendant is a prevailing party and as such is entitled to attorney's fees unless the government carries its burden of establishing that its position was substantially justified. Dougherty v. Lehman, 711 F.2d 555 (3d Cir.1983). Thus not every prevailing party is entitled to an award of attorney's fees -- only those who are parties to a case in which the government's position was not substantially justified. To determine whether the government's position was substantially justified the trial court must look to the record in the case, the factors and reasoning found in the Court's opinion, the relevant documents filed at each stage of the proceedings, actions taken by the government after legal proceedings had commenced and affidavits filed in connection with the fee application. Dougherty supra at 562.

As stated in Dougherty at 564, for the government to show that its position had a reasonable basis in both law and fact it must:

Second, the government must show that there exists a reasonable basis in law for the theory which it propounds. This is not to say the government need demonstrate that there is a substantial probability that the legal theory advanced by it will succeed. See House Reports, supra, at 11, 1980 U.S. Code Cong. & Ad.News, 4490.

Finally, the government must show that the facts alleged will reasonably support the legal theories advanced. Thus, having met these requirements, if the government's legal theory as applied to the facts reasonably supports the Secretary's position, even though the government may not have ultimately prevailed, then the government will have proven that the 'position of the United States was substantially justified'."

I conclude that the government has met these three criteria and has established a reasonable basis for its position.

First as to the basis for the facts alleged in the pleadings:

The government conducted extensive and responsible investigation of the charges it brought against defendant. It discovered that in his immigration and naturalization papers the defendant had given false information as to his date and place of birth and certain other matters. Although not all of the alleged falsehoods were proved at the trial, four such falsehoods were established and defendant admitted three of them.

The most serious charge in the complaint was that the defendant had participated in the killing of Kedainiai's Jewish population. At the time the complaint was filed the government had received from Soviet authorities 14 written protocols or statements of Lithuanian eyewitnesses to the Kedainiai killings. The statements were taken by Soviet authorities in 1976 and 1977, or, in the case of Vladas Gylys in 1981.

The makers of seven of these protocols identified the defendant as one of the civilians who actively participated in the killings. The makers of the other seven protocols either did not know defendant or otherwise were unable to state that he participated in the killings. As of the date of the filing of the complaint the government could have expected that it would be able to take the testimony of all these people to establish both the fact of the killings and the fact of defendant's participation in them.

During the pretrial discovery period the government noticed the depositions of five of the seven witnesses who alleged in their protocols that defendant took part in the killings. However, when the depositions commenced on April 17, 1982 in Vilnius, the Soviet Procurator announced that three of the seven persons who claimed to have seen defendant at the death site would not be available for deposition because of ill health, namely Jouzas Beranski, Andrius Vitkauskas and Vladas Gylys. I had not realized until the present fee application that the Soviet authorities had removed these three persons as witnesses. It adds to one's doubts about the reliability of the deposition testimony that was actually taken, but it could hardly have been anticipated by the government and in no way detracts from the pretrial basis for bringing the suit.

With the elimination of these three witnesses the government was left with two persons who, in their protocols, claimed to have identified defendant, namely Jonas Dailide and Juozas Kriunas. In addition Vladislovas Silvestravicius, who in his protocol asserted he did not know defendant, identified him in a highly tentative manner during his deposition testimony.

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